Thursday, February 3, 2011

David Schoen v. Simon & Schuster: We don't need protection from false 'facts' about the Middle East

By Barry Johnson

A First Amendment problem: If the marketing for a book makes the claim that the book is factually accurate, can you sue the publisher and author for making a false claim? In other words, do the same protections we afford speech (and the press) extend to the marketing of that speech, or are they subject to the same laws that govern any advertising claim -- the effectiveness of those little liver pills that your old granny used to take, for example?

The prominent Alabama civil rights attorney David Schoen has sued Simon & Schuster and Jimmy Carter for advertising claims made in selling the book, specifically that Carter's book was factually accurate. Schoen is a leading Alabama progressive, an ACLU stalwart, who has worked on cases involving foster care reform, educational equity, religious freedom, and fair housing in the state, winning many of them. Open the PDF to the link above, and you can read about the many important cases he has worked on.

The book in question is Carter's 2006 Palestine: Peace Not Apartheid, a book which would have been very unpopular in pro-Israel circles even if every "fact" was demonstrably accurate. Schoen obviously doesn't like it. Here's what he told the New York Times: “There is an ongoing debate about the Mideast, and to misstate, mislead and misconstrue those things intentionally is a very grave, bad act.”
Still, in the suit, Schoen is framing this, narrowly, as a "truth in advertising" claim, though the political points he might score with a court victory or Simon & Schuster capitulation (does anyone keep score on this sort of thing) may be more important to him than the legal principle. At least I hope so.

When I was young, I was inclined to worry more about what I could call a "fact" and what I couldn't. Eventually, I came to the conclusion that making absolute claims about information wasn't a useful way to spend my time. I started making hypotheses instead of truth claims. I tried to build these hypotheses on observations that I had decided were true, understanding that these were provisional, subject to further verification, revision and even overturning. I stopped thinking about Big T truth or Little T truth or even "facts." Most of the "facts" I ran into were either not useful or landed somewhere in the spectrum of probability. And I found that I almost never was concerned with specific "fact," just how it was employed to make a plausible description about something that mattered to me.

You might say I became a Relativist, and sure, that's part of it. But really, I became a Pragmatist, at least when it came to cognitive sorts of questions.

What about the truth claims of others? I became skeptical. Radically skeptical. And what about the truth claims of advertising? Oh please.

Which gets us back to the case. Yes, there's such a thing as "consumer fraud" through advertising. Schoen is undoubtedly more of an expert on this than I am, and here I should point out that none of my arguments are legal arguments: Just me puzzling out this curious case.

As consumers we don't have an "absolute" protection against false advertising, especially when it comes to matters of judgment, such as "the best hamburger in town." In a society that values free speech, we give wide latitude to truth claims of various sorts, perhaps because we don't want to get into the business of litigating squishy things like "facts," but mostly because we assume that the public should be able to evaluate them on its own. And we are all practicing skeptics about advertising claims, even older children, according to studies I've seen.

So, in this particular case, I think it would be difficult to find anyone who bought the book thinking that it contained the final and absolute truth about the history of the Middle East, no matter what the advertising suggested. Anyone. Especially disputatious undergraduates. I think it's possible to sue Simon & Schuster for saying that the book contained factually correct material about the Middle East when it was in fact full of 30-minute recipes. That would be a fraudulent claim (or more likely a marketing mix-up that resulted in someone's firing), and Schoen or someone else would rightly sue the publisher.

That's not what happened. In its advertising, Simon & Schuster made judgments about the book that it had published. To me, that constitutes "speech about speech." And if we grant Carter the freedom to give his account of the Middle East, right or wrong, then why would we limit my right to comment on his account, right or wrong? Or Simon & Schuster's right to its judgment about what it think it's publishing? I don't think we want to: Instead, we want to be able to make our own judgments ourselves -- about the book, about the advertising claims -- without the intervention of the courts. In my opinion, this is how we can have a functioning democracy at all.

It took me a few minutes to arrive at this conclusion. I'm sure that Schoen didn't even have to go through the thought process -- he probably just "knows" it. He says it isn't a First Amendment issue; I think most certainly is. (Why didn't he go after the advertising claims of other books published in the U.S. since 2006? There must be more egregious examples -- "a real page-turner!") If he wants to dispute elements of the book or the claims of the publisher, I support his right to do so to the bitter end. But I wish he'd drop the idea that he somehow is protecting me -- either as a consumer or as a citizen -- from false truth claims. He's not. And by even suggesting he can do so in court, he undermines to a very small extent his work at the ACLU for the past few decades.

The Middle East? I have my half-baked opinions; you may have yours. Together, all of us have a long history of describing things in ways that others think are intentionally wrong. To use Schoen's words, we "misstate, mislead and misconstrue." Sometimes we act in bad faith; sometimes we don't but others think we do. But as free thinkers, we accept the "bad acts" of others to protect the public space to think freely. And we also understand that we ourselves could be wrong about these things.